The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-02-24

ar .I. VI Yuained person to the Office bv
an electoral body at the time and Enthusiastically,
IN the manner and with the safepnards Nc
videa oy law. The electoral bodv NAV 49,;
iest us cnoice in q manner which leaves No
Ne VI tne iact OF choice but il such choice
oe manifested at a time or under condition. mn.
known TO the law, the fact of choice. however
=. esni'staKaole, gees for nothing The force and
elncacy OF the ballot is derived from the Con.
nreSiceIs ana .i,,. laws, and no one can
popular vote, unless such vote was
cast at time when the Constitution and
laws authorized an election for that Office TO he
n n;au In respect to the assumption that the
right or office In question is cognizable solely bv
the political departments Of the State povern
menu, and that the judgment of the General AS
semoly is conclusive on the courts. his Honor
quose so Cooiey on Constitutional Limitations at
page iS6. who says that where the question ia
VINO Is the executive, the judges have functions
70 perform, and may inquire into the facts.
me court Is not asked to confer a right upon
or create title in the relator nor is it asked to
u meter, who shall preside over the Senate
Inc case proceeds upon the theory that the Sem
ate In the exercise of its constitutional preroga-
tiVes mas conferred the right on the reIator and
1nas Inc respondent is unlawfully interfering
with the right so conferred, and still recognized
as existing by the body which conferred and had
the power to confer the right The Judgment of
the court in this, as in all other controversies
concerning the rights of parties cannot create
the the right in one or destroy it in the others
Inc rights of each are fixed by the
Constitution, and the jurisdiction of the
court is invoked as the mere instrument Of the
constitution 20 ascertain and declare their
rights as they That instrument requires
that all courts shall be open, and every man
for an injury done TO him in his person. prop
erty or reputation. shall have remedy fly due
course OF law" 1t is the duty of the courts to
declare the law. Decisions from the Supreme
Court of the United States and of the different
States are cited as sustaining these principles
Inc Judge says, in regard TO validity of
%tnV1 - 49,
has created the executive Office, divided it into
official terms of four years each from
given day, and provided that the ten
ure OF those who may fill the Office
| or discharge its duties shall be four years 1t
| has also created the Office of President of the
| Senate and designated the manner in which it
| shall be supplied with All incumbent. 1t has
made provision for the election of three con-
| stltunonal officers, to the end that two consti-
tutlonal officers may be constantly, and without
| interruption, supplied with incumbent Two
| OF the officers are to be elected concurrently by
| the electoral body at large every four years.
The election of the third may or may
rot be held in allegiance until the occasion arises.
| How n'Ny the occasion arise which requires the
| election of the third officer for which the Con
stltution has made provision? What are to be
his official duties when he is called into being?
The trainers of the Constitution deliberately con
| templated that emergencies might arise to which
| a supernumerary officer be necessary IN order to
| secure the discharge Of the duties pertaining to
| the executive department.. An order of success
sion was arranged as to prevent the possibility
| of vacancy during any of the executive terms
into which the future had been divided. This
provision made 1t impossible that the succession
in the Office of Governor should ever be broken
| during the term the Office become vacant
| while there remained Governor or Lieutenant
governor to act Foreseeing that should the
| Lieutenant governor become Governor the Con-
| stitutlon ordained that President pro tenn.
should be elected. The Judge concludes THUS
it will appear by attending to the constitutional
scheme that there never can be a moment dur
ing any quadrennial period when the Constitu-
ton itself has not supplied officer qualified to
discharge the duties assigned to Governor and
Lieutenant-governor without calling for the
intervention of the electoral body. In the char
acter of Lieutenant governor, that official is re-
quired during the inability, whether temporary
or continuous. Of the Governor, to discharge the
functions of the executive Office. while during
any like inability of the Lieutenant governor to
act as President of the Senate the duties of that
station are devolved upon the President pro tenn
To quote literally: ut follows from a proper
construction of the Constitution that there can
be no vacancy in the office of
Governor or Lieutenant governor so
long as either remains qualified
to act Upon the death or disqualification of
both, the Constitution contemplates that a
vacancy may occur in the executive Office alone.
To meet such possible emergency it required
the General Assembly TO declare by law what
officer should act as Governor. This has been
done accordingly" There is nothing in the Con-
stitution which raises an inference that the
Office of Lieutenant-governor can become vacant
in a legal or actual sense Grief
executive appoint a observation-disclosures. The
|, duties of the two Offices are inseparably con
nected and are not entirely distinct.
Whenever there is existing office. the duties
Of which the law devolves upon a person
or officer named upon the happening of any given
event. the person officer so designated becomes,
. upon the happening of the event named, the in
cnmbent of the Office The opinion adds
There was therefore two insuperable obstacles
to tho appointment by the Governor of Lieu
, tenant governor when General Manson vacated
the Office, one, the Office not vacant because
relator had been elected and was President
, pro tenn, and the other is that the
Constitution made provision for supplying the
Office, if the Senate had not already supplied it.
by election. The office could not be filed under
, Section 476S by an electlon-frst, because there
, was no vacancy; second, if there was, the Con
sttution provided mode of filling it by electinE
! president pro tenn; third. the Constitution for
bids by clearest implication an election for thu
, two officers except for a term of four years
which term can not commence at any other thar
! the times named in that instrument"
, The opinion concludes that the author, while
: holding that so far as the rclator has invoked
the jurisdiction of the Court by an information
the proceedings to the end that the title to tn
Office may be judcially determined is appropri
| are cannot and does not think that the cour
, had jurisdiction to issue restraining orde
] against appellant Judge Howk concurred i.
t the opinion.
, THE NATIONAL LEAGUE FRANCHISE.
3 The indianapolis Committees Statement an
Suggestions to the Public.